Will Plaintiffs’ Lawyers Find New Ways to Sue? They Bet Their Boat They Will

In 1999, flush with more than a three billion dollar windfall from tobacco lawsuits, plaintiffs’ lawyer Ron Motley reset his crosshairs onto another “deep-pocketed” industry: companies that had ceased the manufacture and sale of lead-based paint 30 years ago or more. So certain he could bring the entire industry “to its knees,” Motley vowed to give away his prized 120-foot yacht if he and his firm, Motley Rice, did not prevail.

Motley thought he earned his first big payday in the state of Rhode Island when, in 2007, a jury ruled that paint companies were responsible for the effects of the lead paint they manufactured before it was banned. But now he will have to look for a legal victory elsewhere.

This past July, the Rhode Island Supreme Court unanimously reversed the ruling and tossed out the multi-billion dollar lawsuit, stating that the case “should have been dismissed from the outset.” The court agreed with the defendants who had been correctly arguing for nearly a decade that the plaintiffs’ twisted use of the public nuisance legal theory in the case was bogus.

Public nuisance—an 800-year-old legal concept, today used to settle disputes such as neighborhood quarrels over loud rock music—is a legal standard intended to apply to unreasonable interference with public rights. In seeking to have it apply to lead paint, the plaintiffs sought to bypass well-settled notions of product liability law, such as the requirement to demonstrate that the defendant in the case actually caused the harm in question.

They contended that, in this case, all they had to prove was that a company sold lead-based paint in the state prior to 1978 when it was outlawed, and that there are houses in Rhode Island that have this paint in them.

As simple as it seemed, plaintiffs’ lawyers had to face the fact that the public nuisance theory has never been used successfully in a product liability suit because it is not intended to cover such cases. When the Rhode Island Supreme Court rightly rejected this lawsuit based upon ill-conceived legal reasoning, it was only the latest to do so. Courts in Missouri, New Jersey and elsewhere have rejected public nuisance-based claims in cases brought by Motley Rice and other plaintiffs’ firms.

So why bring a suit when your chances of winning are slim? It turns out that if Motley Rice had won their Rhode Island case, it stood to pocket more than $400 million in legal fees. In its very public criticisms of the Supreme Court in connection with this case, it has conspicuously failed to acknowledge this very considerable financial interest in the outcome of the case.

Lisa A. Rickard serves as president of the U.S. Chamber Institute for Legal Reform (ILR), where she provides strategic leadership to ILR's comprehensive program aimed at changing the legal culture that has resulted in our nation's litigation explosion.

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